Relationship between the Arbitral Tribunal and Third Parties - Essay Example

The Doctrine of Autonomy and the Relationship between the Arbitral Tribunal and Third Parties 0 Introduction Arbitration refers to the reference of a given case to a third party who is selected by the parties to a particular dispute; the parties to a particular dispute normally agree to abide by the award of an arbitrator following the hearing of both parties (CARDUCCI, 2012). Typically, arbitration is perceived as an alternative system of resolving disputes given the fact that it does not have recourse to the domestic law courts; the disputing parties normally experience a resolution of their disputes via the intervention of a third party. The decision that is made by a third party is deemed to be enforceable in the court of law; it is as well binding to the disputing parties. The increasing popularity of the international arbitration is attributable to the fact that a large number of disputes relating to an international trade are not resolved in the court of laws; most of the international trades’ disputes are settled by arbitration. Specifically, Tyler (2013) provides that arbitration has seen its usage increase immensely in the international arena due to controversies relating to technology, substantial business activities, transactions of securities, the real-estate sector and intellectual properties among individuals and corporations of different nationalities. Most often, the legal practitioners refer arbitration as an informal procedure, partially; due to fact that the parties to a dispute normally agree to choose a third party that would arbitrate and settle the disagreement via providing a fair and effective award (Mustill, & Boyd, 1998). Although there is a domestic and international arbitration, Arbitration Fairness Act (2008) shows that the international arbitration has gained significant popularity following the inter-states relations that are developed by trade. Rutledge and Drahozal (2014) perceive that the increasing level of cross-border trade calls for effective and expeditious methods of settling the international disputes relating to commercial activities. It is arguable that a number of the international traders choose the arbitration process over the national courts methods due to a number of reasons. Among them include the speed of arbitration; this ensures that individuals are able to settle a matter expeditiously and focus on business. Secondly, it provides the disputing parties the chance to exercise liberty via choosing their own arbitrators. Thirdly, a controversy is normally settled by experts, and the decision made is considered legally binding and enforceable in the court of laws. Fourthly, in relation to the domestic laws, the arbitration process is considered as a confidential system which is likely to reduce the effects of a dispute among the disputing parties (Starr, 2014). Amidst these advantages, it is considered that the autonomy of parties is one of the aspects that distinguish arbitration from other mechanisms of settling a dispute. This paper is focused on discussing how the doctrine of autonomy has influenced the relationship between the arbitral tribunal and third parties. 2.0 The Principle of Autonomy Sander (1993) is of the opinion that the flexibility which is offered by the international arbitration has embraced a large number of international traders because of its autonomy. The disputing parties have the power to choose the third party who would arbitrate a particular dispute. The parties to a particular contract normally gain from international conventions as far as acquiring legal framework is concerned. The legal frameworks can are usually provided by a number of the international conventions, such as the United Nations Commission on International Trade Law Arbitration Rules, the International Chamber of Commerce Arbitration Rules and the International Centre for Settlement of Investment Disputes Convention (Sanders, 1993). All the international conventions are associated with the principle of party autonomy as far as the selection of substantive law is concerned. It is not uncommon that the parties to a certain dispute have the liberty to select the law which should be applied to their particular case; the law that is chosen is believed to take into consideration factors that characterize the trade and the parties to an agreement. According to Rutledge and Drahozal (2013), this principle is normally focused on providing priority to the choices made by parties to particular dispute. Nevertheless, the autonomy of parties with respect to the selection of a certain substantive law is continually threatened by a number of issues, such as the combination of the unrestricted power of the third parties that are chosen to provide an award and the growing obligatory rules; in this regard, the autonomy of parties are likely to decrease (Sanders, 1993). The unrestricted power of the arbitrators to choose the law which is relevant to the merits is more likely than not to reduce the autonomy of parties; as a result, this may reduce the extent of the doctrine of the autonomy of parties. However, Class Actions Class Arbitration Waivers (2013) shows that the arbitral tribunal has the capacity to select the substantive law and gain from elaborate systems to choose a law amid a wide range of set of regulations. Despite the existence of this freedom, the liberty is subordinated to lack of choice among the parties. Besides, it can be argued that the discretionary power ensures the principle of the party autonomy is harmful; this is due to the fact that the principle of party autonomy normally intervenes following the presence or absence of choices among the parties to a controversy. The parties to an agreement are also concerned about the application of obligatory rules. The mandatory laws attempt to safeguard the important value of nations or the international community (Leiby, 2014). It is common that parties are constantly seeking to avoid the application of significant mandatory rules; on the other hand, states usually demand the guarantee that their obligatory rules would be taken into consideration while settling a given dispute. Generally, the international commercial arbitration normally upholds the connection with states via the acknowledgement and enforceability of arbitral decisions. As far as practice is concerned, arbitrators can provide themselves a higher level of freedom with respect to the decree of substantive law relative to the court of law. While seeking freedom with respect to a substantive law, arbitrators are expected to be guided by the international trade contract and the traditions of the international trade. According to Lampley (2013), the parties to a given controversy should anticipate experiencing such occurrences when they resolve to settle their disputes in the court of laws; the fundamental characteristics of arbitration tend to differ from the domestic courts of law. From the above discussion, it is arguable that the arbitration process is indisputably in favor of parties to a given contract. In other words, parties have the chance of experiencing justice that is in accordance to their anticipations and interests. The Chartered Institute of Arbitrators (1996) shows that this type of flexibility is achievable via the doctrine of the party autonomy; it is evident on the fact that the degree of powers of the arbitral tribunal is typically subordinated to the wish and choices of parties to a given contract. This type of a wide range of flexibility is never experienced in the state’s court of law. With respect to the aforementioned aspects relating to autonomy, the Federation of Indian Chambers of Commerce and Industry (1997) provides that there is a continuous relations between the discretionary powers of arbitrators and those of the parties. In summary, arbitrators have the power to deliver arbitral awards that are legally to the parties; how, the decisions of the arbitrators should respect the choices that are made by parties to a particular contract. On the other hand, Van den Berg (1981) shows that parties are expected to respect the arbitral awards that are rendered by the arbitral tribunal; parties to a given contract have the capacity to decide the proceedings of an arbitration process prior to its beginning. This feature attempts to differ with the state’s proceedings since judges tend to have a significant discretionary power in the domestic powers. The difference between the two proceedings relates to the fact that arbitration is associated with privacy while the domestic proceedings are associated with publicity. While the domestic court of laws are awarded powers by public authorities, the powers of arbitration stems from the contract, and, consequentially, the arbitration agreement. The choices regarding the diverse aspects of the arbitral proceedings run by parties to a given contract are normally provided in the arbitration agreement. The arbitration agreement refers a wide spectrum of rules which guides the manner the proceedings is executed. This denotes that arbitrators which execute the choices of parties have to refer to the arbitration agreement to perform the proceedings in line with the expectation of parties. 3.0 The Interest of States and the Autonomy for Parties These international conventions provide autonomy for parties with respect to the selection of a law that is applicable to the merits of the parties’ cases; this autonomy is typically referred to as the doctrine of party autonomy. This canon is appealing to the parties given the fact that the interests and expectations of parties are prioritized (Redfern, & Hunter, 1999). However, the favor of the interests of parties to a given contract at the expense of the state’s interest has raised a number of issues. It is evident that the effect of states on international commercial arbitration has significantly reduced in the recent past. Researches by Lew (1986) indicate that a number of questions have been raised as to whether parties which are allowed to resolve a dispute without considering the mandatory law of country where arbitration takes place enjoy unrestricted discretionary power; it is argued that parties do not enjoy unlimited discretionary power as far as designating a substantive law is concerned. According to the legal practitioners, mandatory rules of states refer to a set of rules that focus on safeguarding the elementary values of a state; various states are associated with different mandatory rules apart from the international public order (Spero, 2014). The diversity of the states mandatory rules indicates that the mandatory rules are subjective. The differences between the mandatory rules of different states exist since a number of states embrace the liberal approach while others the restrictive perspective. It is on the basis of the states approaches as far as liberalism and restrictiveness are concerned that a large number of parties avoid the application of the mandatory rules; they perceive the mandatory rules as a hindrance to their benefits. Nevertheless, Lew (1986) argues that arbitrators are provided with the discretionary power as regards the selection of law which is appropriate to the merits. The characteristic of the parties to have the autonomy is not in the interest of the states. The national authorities normally question the reason why arbitration promotes the application of rules which are deemed as mandatory in a foreign state. It is evident that a number of states decline to enforce various decisions made by arbitrator due to the fact that the moral principles which are safeguarded by the foreign rules and orders are different from those protected on the state laws (Spero, 2014). Additionally, the state considers that the provision of discretion to arbitrators would grant the arbitrators powers which are similar to the state’s judges. In this regard, the state views that there would be no need for resorting to the international arbitration if arbitrators are likely to be conferred the powers of the state’s powers. These are among the issues that are deemed sensitive as far as the relationship between arbitration and the interest of the state is concerned. As regards the relationship between the parties and arbitrators, Lew (1986) observes that a significant discretion among the arbitrators is always perceived as an intimidation to the autonomy of the parties. On the other hand, sovereign governments would attempt to ensure that the application of the mandatory rules is appropriate; in this regard, the sovereign states are unlikely to provide unrestricted discretion to parties. As a result, it is arguable that the autonomy of parties would be perceived to contend with the discretion of the arbitrators and the state’s interests. 4.0 The Autonomy in the Context of the International Conventions The aspect of globalization increased considerably relations at the international commercial relations. However, the growth of the international trade relations have been characterized by increased levels of the international trade disputes. In the light of flexibility, privacy and certainty, Tyler (2013) argues it is more likely than not that a significant number of parties are likely to attract to the international commercial arbitration. The appealing condition of the international commercial arbitration is explained by the establishment of a large number of popular systems of arbitration. About three international conventions in the world are associated with the autonomy of party; however, the autonomy of party are awarded different as far as the three models are concerned. The international conventions include the International Chamber of Commerce Arbitration Rules, United Nations Commission on International Trade Law Arbitration Rules and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. 5.0 The Three Major International Conventions As far as the international arbitration is concerned, there are three major International Conventions that are associated with the settling of the international disputes. They include the United Nations Commission on International Trade Law which was founded as of 1966 (Redfern, & Hunter, 1999). This Convention established its Arbitration Rules in 1976 (Redfern, & Hunter, 1999). This commission is popularly known for settling the international disputes via its Arbitration Rules. The other International Convention includes the Convention on the Settlement of Investment Disputes between States and Nationals of Other States; this commission was established in 1966, and aims at settling legal disputes that are associated with investments (Redfern, & Hunter, 1999). It is reported that this commission experienced about three-hundred and sixty-nine cases which were registered as of 2012 (Tyler, 2013). The other International Convention is the International Chamber of Commerce Arbitration Rules; this commission is characterized by all the rules for the resolution of disputes via arbitration with respect to the auspices of the International Court of Arbitration that was established in 1923 (Redfern, & Hunter, 1999). The International Chamber of Commerce experienced about 759 cases in need of arbitration as of 2012 (Tyler, 2013). 5.1 The United Nations Commission on International Trade Law Arbitration Rules The article thirty-five of the Arbitration rules provides that the arbitrators shall apply the rules of law that is established by the parties to be applied on an existing dispute (Redfern, & Hunter, 1999). The failure of the establishment of the rules of the law that is applicable for a certain dispute would result in the arbitral tribunal choosing a law which would be applied to a given controversy. Under article thirty-five, the arbitral tribunal would have the right to decided as affable compositeur or ex aequo et bono on the condition that the parties have explicitly authorized the arbitral tribunal to carry out such function (Redfern, & Hunter, 1999). The article adds that in all disputes, an arbitrator will decide in compliant with the terms of a contract in the event that the terms of the contract are available; otherwise, the arbitral tribunal will take into consideration the custom of trade which is applicable to a given transaction. Redfern and Hunter (1999) shows that the article 35 of the United Nations Commission on International Trade Law Arbitration Rules tend to provide autonomy to parties in two ways; they included the structurally and literally. The selection of an applicable law by the parties normally takes precedence over the discretion of arbitrators. The arbitral tribunal can gain from discretion at this stage in exceptional scenarios. The two exceptions where an arbitrator could include: in the event the parties fail to decide about the applicable law or in case of the parties’ failure of express endorsement for the arbitrators to decide as amiable compositeur or ex qequo et bono( Redfern, & Hunter, 1999). This international convention ensures the doctrine of autonomy is protected by subordinating the discretionary powers of the arbitral tribunal either to the failure of parties of a given contract to select an applicable law or their express selection. In relation to Redfern and Hunter’s (1999) argument, the use of various terms by article 35 of the United Nations Commission on International Trade Law Arbitration Rules indicates that this international convention places more emphasis on the autonomy of party as opposed to the discretion of arbitrators and the interest of the states. Firstly, the term shall indicate that the discretion of arbitrators is subordinated to the autonomy of the parties. The use of the term “rules of law” attempts to expand the autonomy of parties; the lack of the express limitation as regards the selection of applicable law can denote that parties have the liberty to select various laws to resolve their controversies. In this regard, the applicable can stem from the state legal structure; it can as well emerge to be a non-domestic law or rules that linked to the dispute. It can be noted that the use of a singular terms as regards the applicable law among arbitrators “law” (Redfern, & Hunter, 1999) ensures that the discretionary powers of the arbitral tribunal is reduced significantly. Article 35 of this international convention demonstrates a dichotomy as regards the liberty provided to parties and arbitrator when selecting a substantive law. It is evident that in this case the doctrine of party autonomy is superior to the discretion powers of the arbitral tribunal; this denotes that parties do not experience limitations with respect to the selection of a law that is applicable for their case. 5.2 The Convention on the Settle of Investment Disputes between States and Nationals of Others States According to the Convention on the Settle of Investment Disputes between States and Nationals of Others States, article 42 provides states that the arbitral tribunal shall decide a dispute according to such rules of law as would be agreed by the parties (Lew, 1986). However, in the nonexistence of such agreement, the arbitral tribunal will apply the law of the contracting state party to the dispute and associated orders of the international law as would be deemed applicable (Lew, 1986). Secondly, the article provides that the arbitral tribunal might not bring in a finding of non liquet based on silence and insignificance of the law (Lew, 1986). Thirdly, the international convention provides that the first and second provisions shall not discriminate the power of the arbitrators to settle on a dispute ex aequo et bono in the event that the parties agree (Lew, 1986). The article 42 demonstrates an agreeable content with respect to the expectations of the parties that resort to arbitration to resolve a legal dispute that is related to an investment. This is illustrated by a detailed structure which takes into consideration flexibility and certainty; the outcomes of these two features are advantageous to the parties (Lew, 1986). Flexibility with respect to article 42 is associated with the fact that autonomy is provided for the selection of a law which is applicable to the substance of their controversy; specifically, flexibility is provided by the term “rules of law” (Lew, 1986). The expression “rules of law” (Lew, 1986) denotes that parties are not limited to any legislation; in other words, the parties to a dispute stand a chance to select any law that suits their case, which may include the non-domestic law. The emphasis on the autonomy for parties has been consistent on article 42 of the aforementioned international convention. In particular, in a case of Kasier Bauxite vserus Jamaica the arbitral tribunal provided that the disputing parties can choose according to their agreement a law of the country where the dispute is resolved in conjunction with rules of international law. With respect to the case of Autopistas versus Argentina of 2003, the arbitral tribunal provided that the term “rules of law” permits the parties to concur on a partial selection of law and specifically to choose explicit rules from a given system of law (Tyler, 2013). Additionally, parties can agree to take into consideration different laws. For instance, with respect to the case World versus Kenya the arbitral tribunal established that accord that has two selections of law clauses relating to dissimilar laws but have similar substantial effects is applicable (Tyler, 2013). The mentioned cases indicate degree of autonomy and flexibility that is granted by article 24 of the Convention on the Settle of Investment Disputes between States and Nationals of Others States. The selection of law which can be deemed uncommon is acceptable as far as this international convention is concerned; any selection that is done in agreement among the parties is acceptable as far as the choice of law is concerned. Moreover, the certainty that is associated with the outcome of the system has a significant function. Certainty is deemed important given the fact that parties fail to concur on the law that should be applied to their legal dispute. In this respect, it is provided an arbitrator would have the duty to select the applicable law in the event the parties to a given contract fail to agree on certain set of rules that would be applied. The existence of flexibility and certainty with respect to article 42 is a significant value among parties. Similar to article 35 of the United Nations Commission on International Trade Law Arbitration Rules, article 42 of the Convention on the Settle of Investment Disputes between States and Nationals of Others States grants a significant degree of autonomy to parties. 5.3 The International Chamber of Commerce Arbitration Rules According to the International Chamber of Commerce Arbitration Rules, article 21 provides that the disputing parties shall be at liberty to agree the rules of laws which would be applied by the tribunal to the merits of the controversy (Craig, Park, & Paulsson, 1991). In the event of lack of an agreement as regards the choice of law, the tribunal will apply the clauses of law which it would establish to be relevant. Paragraph two provides that the tribunal will take into consideration the terms of agreement of the contract in case provisions are provides; the terms of agreement would be linked to the two parties or any appropriate relevant trade customs (Craig, Park, & Paulsson, 1991). Paragraph three provides that the tribunal will decide ex aequo et bono or assume the powers of an amiable compositeur in the event that parties grant the arbitrators such powers (Craig, Park, & Paulsson, 1991). In relation to the above, one can notice a number of similarities with article 35 and 42 of the United Nations Commission on International Trade Law Arbitration Rules and the Convention on the Settle of Investment Disputes between States and Nationals of Others States respectively. Article 21 of the International Chamber of Commerce Arbitration Rules attempts to emphasize on the autonomy of parties as opposed to the discretion of arbitration (Craig, Park, & Paulsson, 1991). Nevertheless, this article is distinguished from others via the extent of discretionary powers in grants to arbitrators in the event of the parties’ failure with respect to the choice of law. The expression “parties are at liberty to agree” (Craig, Park, & Paulsson, 1991) demonstrates the ability of parties to select the law they would wish to use in resolving the legal dispute; this concept represents the doctrine of the party autonomy as far as the arbitration proceedings are concerned (Tai-Heng, 2013). Parties tend to benefit due to the existence of autonomy which provides an opportunity to select the applicable law to the merits of a legal dispute; in a particular, the phrase “rules of laws” (Craig, Park, & Paulsson, 1991) confirm that this international convention allows parties to any law, including the sates’ law or non-state law, as well as the lex mercotoria and other laws that would guide the resolution of a given case. The use of the term “shall” or “will” (Craig, Park, & Paulsson, 1991) endeavors to assure parties that their selections of laws would be applied. In this regard, arbitrators are expected to receive the choice of the disputing parties without proceeding to any type of a review. As a result, article 21 indicates that the principle of party autonomy characteristically takes precedence over the discretionary powers of the arbitrators. Although Craig, Park and Paulsson (1991) show that article 21 emphasizes on the autonomy of other party, it is provided that a large number of individuals do not practice this right; in most cases, lawyers tend to perform various activities on the behalf. In this respect, parties are not the direct users of the autonomy of practice since lawyers act on their behalf. It is therefore arguable that currently, that the direct benefit of the autonomy of party is presently enjoyed by lawyers. However, individuals enjoy the autonomy of parties via the representation of lawyers. In this respect, it can be concluded that the selection made by parties is subordinated by the choice which is made by a lawyer. Though legal practitioners have to make decisions according to the expectations of parties, the legal awareness of lawyers enables them to have an advantage over the disputing parties. Statistics indicate that as of 2010 forty-four percent of firms were inclined to choose their own country’s states law and twenty-five percent would choose the English law when asked to select the applicable law to a given controversy (Tyler, 2013). However, with the increasing knowledge of the importance of hiring international legal practitioners with awareness of the legal structures, it is likely that a large number of disputing parties are likely find the finest lawyers the soonest in order to be assured of enjoying the advantages that are associated with arbitration due to the selection of the applicable law the legal dispute. 6.0 Conclusion The autonomy of parties continues to shape the relationship between arbitrators and parties, as well as the states. It is notable that both the state and arbitrator are considered as the third parties. A number of definitions with respect to the term arbitration denote an arbitrator as a third party. Similarly, states are considered as third parties given the fact that they are influenced by decisions of the arbitrators. It is evident that the state is usually required to recognize and enforce the awards of the arbitrators irrespective of whether the arbitral proceedings were based on the domestic law or foreign rules. This has seen a number of controversies given that in a number of circumstances states are inclined to decline the acknowledgement of the decisions which are made by arbitrators; experts question whether the international arbitral rules is above or below the national laws. On the other hand, the discretionary powers of the arbitrators are continuously shaped by the behaviors of parties as far as the parties’ autonomy is concerned. While the discretionary powers of the arbitrators is originally subordinated to the autonomy of parties, it is evident that in the current world a large number of disputing parties delegate the task of choosing the applicable law to arbitrators. In this respect, it is arguable that more powers are conferred by disputing parties to an arbitrator. 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